Shri Jai Lal vs Union Of India (Uoi) And Ors.
1994 Latest Caselaw 690 Del

JUDGMENT

Mr. K. Shivashankar Bhat, J.

1. The petitioner seeks the following reliefs:

(a)     To issue appropriate writ, order and/or directions to quash the office orders marked as Annexures 'A' and 'B' by which petitioner's name has been removed from the approved 'D' list;
 

(b)    To issue appropriate writ/direction/orders to direct the respondents to declare the petitioner to be on the approved list 'D' and promote him as Sub-Inspector from back date when his batch-mates were promoted;
 

(c)     To issue appropriate writ/direction/order to direct the respondents to give him all the benefits and pay and allowances from that day in the capacity of a Sub-Inspector;
 

(d)    To pass such other order or orders that your Lordships may deem fit and proper in the circumstances of the case.  
 

2. The petitioner's name was found in the approved 'D' list for promotion as Sub-Inspector. However, by virtue of the impugned orders his name was removed, resulting in the denial of the promotion to the petitioner.
 

3. Some of the relevant facts are that the petitioner joined as a Constable in the Central Reserve Police Force. In the year 1980; he was promoted. Petitioner also received a few awards for good performance. In the year 1986, he appeared for the written test in English which he passed. Thereafter he appeared for outdoor tests including interview. Since the petitioner was found to be fit and passed .the tests, he was informed accordingly in November 1986. His name was included in the approved 'D' list for promotion. The petitioner however, found that as and when the vacancies arose several Head Constables who had been in the approved 'D' list Along with the petitioner were promoted but the petitioner was not promoted. In January 1988 there was another test in respect of another batch and those who were successful and whose names were found in the 'D' list thereafter were also promoted. In these circumstances, petitioner enquired as to why he was not promoted. The petitioner was shown an office order stating that petitioner was involved Bangla Sahib Gurudwara incident dated 5.12.1986 at Delhi in which three personnel of C.R.P.F. died and there are three enquiries pending in respect of the said incident and the petitioner had not shown required standard of efficiency after the said incident. It is in these circumstances, that his name was removed from the approved 'D' list as per Rule 65 of the Central Reserve Police Force Rules, 1965 (the Rules). Therefore, the petitioner approached this Court questioning the impugned orders which he obtained after he was told of the reason for his non-promotion,

4. Annexure 'A' is an office order made in May, 1987 which states that the petitioner had been involved in the incident which occurred on 5.12.1986 at Delhi near Bangla Sahib Gurudwara in which three personnel of the unit were killed and three separate enquiries were pending in this connection. The office order further states that after the incident petitioner failed to keep up the required standards 'at efficiency', and therefore, his name was removed from the approved 'D' list.

5. Annexure 'B' states that the case of the petitioner was considered in depth and it was decided that he will have to appear afresh and qualify in approved list 'D' Tests in future for further promotion.

6. The petitioner contends that he was not issued with any show cause notice and no enquiry was held against him and in none of the enquiries was there any personal allegation against him of any inefficiency or dereliction of duty. According to the petitioner the enquiries are general in nature and against the whole Company. The petitioner further points out that 5 personnel were found guilty and disciplinary action was taken against those 5 persons but the petitioner was not in any manner subjected to any disciplinary action. Learned counsel for the petitioner submitted that removal of the petitioner's name from the approved 'D' list results in civil consequences as the petitioner is deprived of the promotion which was due to him.

7. In the counter affidavit filed on behalf of the respondent it is stated that as per Rule 62(c) the approved list is subject to review periodically (annual review) and name of the persons who fail to keep up the required standards of efficiency or are found guilty of grave misconduct may be removed from the approved list by the Competent Authority. However, such a removal will not be a permanent bar for the individual being considered in the approved list once again. It is stated that the petitioner was not considered fit for promotion. The counter also refers to another rule which requires the Commandant to record reasons in support of his opinion whether he recommends that the name of the member of the Force should remain in the approved list or not. The respondents rely on the document filed as Annexure 2 to the counter affidavit dated 9.4.1987 wherein the Commandant had recorded that --

Sl. No. 1 No. 650020312 HC Jai Lal has been involved in the incident occurred on 5.12.1986 at Delhi near Bangla Saheb Gurudwara in which three personnel of this unit were killed and 3 separate enquiries (Magisterial enquiry. Crime Branch enquiry by Delhi Police and Court of Inquiry by the DIGP, CRPF, Rampur) are pending in this regard. The conduct of above HC during and after the above incident in his capacity of DHM of a Coy of this Unit was reported to be questionable. Therefore, his name is not recommended for retention in Approved List 'D' (GD) 8/86 pending finalisation of these enquiries. Hence his name may please be deleted from the names of those on Approved List 'D' (GD) 8/86 provisionally."

The counter also refers to the fact that the petitioner was part of the Company which was sent to Bangla Saheb Gurudwara in respect of which three enquiries are pending and therefore he was not promoted and his name was removed from the approved list.

8. The nature of the incident referred as Bangla Sahib Gurudwara incident is described by the petitioner in the writ petition which has not been controverter in the counter affidavit. Having regard to the relevancy of the question the entire averments are repeated as below:--

"That it is very important to mention here the Bangla Sahib incident which has been referred to in the office order.

On Dec. 1986, 42 Bn was airlifted from Bangalore to Delhi as there was law and order problem due to terrorists. Two companies of 42 Bn were deployed at Bangla Sahib Gurudwara as Gurudwara authorities were insisting on taking out a procession on Martyrdom day of Guru Teg Bahadur but the local authorities were resisting such moves as prohibitory order under Section 144 of Cr. P.C. were imposed in the area. However, subsequently the procession was allowed to proceed with 2 Companies of CRPF together with large number of DAP as well as U.P.PAC personnel making security arrangements. Suddenly some youth on a motorcycle came and conveyed some inflamatory news by which the whole lot became more tense and restless. A large number of sikhs started shouting slogans yielding naked swords, kirpans and other lethal weapons. They also started heavy brick batting towards police forces as a result of which many police personnel got seriously injured. The local police also in order to control the mob fired few rounds of small arms as well as burst several shells of tear gas, as a result of which the processionists withdrew towards the Gurudwara.

That since the processionists had withdrawn to Gurudwara Bangla Sahib, the local authorities ordered CRPF companies to stand by on the roadside pavements on both sides of the road. Accordingly the CRPF men were standing by on the pavements.

That suddenly a truck came from main entrance of Gurudwara at a very high speed, took a round of Gole-dak-khana and on its way back was about to hit Mr. Arun Bhagat, Addl. Commissioner of Police, Delhi Police but he was timely pulled back by the CRPF personnel. The CRPF personnel also just escaped as they jumped timely. After a lapse of few minutes the same truck was again seen moving in the same direction at the same menacing speed. Observing this the CRPF personnel requested the Delhi Police authorities (under whom CRPF was placed) present nearly to take some action for stopping the vehicle as the intention of driver was not good, the way he was driving. However, before any action could be taken, the driver again took a round of Gole-dak-khana at a very high speed and all of a sudden turned in towards the CRPF personnel standing on the pavement and rammed it against them by taking the truck on the pavements and killing three persons instantly and injuring many more. In this male driver and co-driver of the truck tried to jump and escape who were apprehended by the CRPF men and handed over to the local police.

That on seeing three dead bodies the constables were perturbed and enraged. It was a natural outburst as their force brothers had died in their presence and they could not do anything, knowing pretty well that the intentions of driver were bad (since CRPF was placed under the local police so they could not take action for even stopping the truck driver unless given orders by the local authorities therefore, sensing trouble they were repeatedly requesting the local authority to give orders for controlling the truck).

That after this incident, an enquiry was held by Senior Officers headed by Deputy Inspector General who found five persons guilty for misbehaving with the officers. The persons who were found guilty were one havaldar and four constables, who were accordingly, published also. The petitioner was neither found guilty nor punished for any act in this particular incident.

That no adverse remarks were conveyed to the petitioner after this incident so he failed to understand as to how can he said to be involved in the Bangla Sahib incident."

9. The above narration shows that on the face of it no imputation against any individual personnel is forthcoming. In fact three personnel died in the incident not due to any action taken by the personnel of the Company. The counter nowhere states that the personnel including the petitioner failed to discharge any of the duties assigned to them and there was any negligence on the part of the officers of this Company. The nature of the enquiry also is not forthcoming though it is stated that there are 3 kinds of enquiries pending. It looks to me that the enquiries are of general character, especially in the context of the fact that no individual notices have been issued to the personnel to show cause against any particular charge. There is not a single sentence in the counter which points out the nature of decline in the efficiency of the petitioner after the Bangla Sahib Gurudwara incident. The five persons who have been found guilty of certain charges have been punished after conducting appropriate disciplinary enquiry. In such a situation, to deny promotion to an officer like the petitioner, only on the ground that certain enquiries against the entire Company are pending, looks to me to be quite arbitrary. Even here it is not clear whether the enquiry is held against the Company as such or against any of the officers concerned. It is quite possible that because three officers died in the incident magisterial enquiry and departmental enquiry shall have to be conducted and obviously they are still pending. If the petitioner had passed the relevant tests and found to be fit for promotion, I. fail to understand as to how suddenly he lost his efficiency only because he was a part of the Company which was sent to maintain the law and order situation at Bangla Sahib Gurudwara.

10. Apart from this, there is a clear failure to observe the principles of natural justice. Petitioner was not notified of the proposed action. The right accrued to the petitioner for being considered for promotion was denied to him without any notice to him. Even the alleged adverse remarks are not furnished to the petitioner and it is now quite fairly well established that any adverse remarks which would affect the service career of an officer should be intimated to him so that he gets an opportunity to make appropriate representation.

11. In the circumstances, it is not possible for me to sustain the impugned orders. The orders are accordingly set aside. The respondents are directed to promote the petitioner w.e.f. the date from which he should have been promoted but for the alleged incident. The petitioner is also entitled to all consequential benefits. The order shall be given effect to within 3 months from today. Rule made absolute. No costs.